STATE OF WISCONSIN

**************** *

JAMES BENDER, * *

Appellant, * *

v. * *

Secretary, DEPARTMENT OF * HEALTH & SOCIAL SERVICES, *

* Respondent. *

* Case No. 81-382-PC *

* ****************

* THOMAS OLSON, *

* Appellant, *

* V. *

* Secretary, DEPARTMENT OF * HEALTH & SOCIAL SERVICES, *

* Respondent. *

* Case No. 81-383-PC *

* **********XX****

* FRANR NELSON, *

* Appellant, *

* v. *

* Secretary, DEPARTMENT OF * HEALTH & SOCIAL SERVICES, *

* Respondent. *

* Case No. 81-384-PC *

* ******x*x**x****

PERSONNEL COMMISSION

DECISION AND

ORDER

NATURE OF THE CASE

These are consolidated appeals pursuant to s.230.44(l)(c), stats., of

suspensions without pay of varying length imposed on the appellants.

Bender, Olson, & Nelson v. DHSS Case Nos. 81-382-PC, 81-383-PC, & 81-384-PC Page Two

FINDINGS OF FACT

1. The appellants at all relevant times have been employed in the classified

civil service at Taycheedah Correctional Institution (TCI), an adult female

correctional institution which includes security classifications of maximum,

medium and minimum, and which is in the Division of Corrections, Department of

Health and Social Services (DHSS),in managerial/supervisory unrepresented

positions, with permanent status in class, in the following capacities:

Bender: Assistant Education Director Olson: Education Director Nelson: Food Service Director

2. Mr. Olson reported directly to the superintendent and appointing

authority, Ms. Switala. Mr. Bender reported to Mr. Olson. Mr. Nelson

reported to the institutional business manager, Mr. Radlund.

3. On August 19, 1981, the appellants left the institution around

11:30 a.m., to have lunch off the grounds at the "101 Club."

4. After finishing lunch, at about 12:30 p.m., they decided to do some

drinking and to take the rest of the afternoon off.

5. At this point, Mr. Olson and Mr. Nelson had already had one drink each

with lunch, and Mr. Bender had not had anything to drink.

6. At this point, and before starting to drink, Mr. Bender confirmed with

Mr. Olson that he could take the remainder of the afternoon off as approved

leave time. There had been some previous discussion between Mr. Bender and

Mr. Olson about this topic earlier that morning.

7. At about 12:30 p.m., Mr. Olson called Ms. Krenke, TCI treatment

director, at her office, and told her he was at the 101 Club and asked if she

wanted to come down for lunch. He said that they had already eaten lunch and

were having a few drinks at the bar. At that point he did not say that he was

not coming back to the institution and there was no discussion of her taking

Bender, Olson & Nelson Y. DHSS Case Nos. 81-382-PC, 81-383-PC, & 81-384-PC Page Three

care of reporting his absence within TCI. She declined the offer of joining

them for lunch, indicating that she had no car.

8. At about 2:00 - 2:30, Mr. Olson called Ms. Krenke again. This time,

Mr. Nelson also was on the line. She again was asked to come to the club,

indicating that they could come and get her. Both appellants sounded as though

they were under the influence of alcohol at this point.

9. The appellants drank at the 101 Club until about 3:OOp.m. when they

returned to TCI. They had consumed a total of 4 - 5 drinks each.

10. The appellants had decided to return to TCI in order to lock their

desks, as required by institutional policy, and with respect to Mr. Olson and

Mr. Nelson, to pick up their cars. In addition, Mr. Nelson intended to copy

and circulate the next week's menu, which was his normal procedure on Wednesdays.

11. Neither Mr. Olson nor Mr. Nelson informed anyone at the institution

prior to their return that they would not be coming back after lunch. In

their absence, several employes were unable to locate various of the appellants

and asked the control officer about their whereabouts. The control officer

was unable to account for them as she had not been informed that they would

not be returning from lunch. Following their return to TCI, Mr. Olson notified

Mr. Borgen at the institution before he left at around 3:30 that he would be

gone for the rest of the day. Mr. Borgen was acting superintendent that day.

12. Upon their return to the institution, Mr. Olson and Mr. Nelson

manifested evidence of having consumed alcoholic beverages by having an odor

of alcohol on their breath, slurred speech, and personal behaviour that was

unusual for them,in the presence of a number of employees, and, in the case of

Mr. Nelson, at least one inmate.

Bender, Olson, & Nelson v. DHSS Case Nos. Bl-282-PC, Bl-283-PC, & Bl-284-PC Page Four

13. Upon his return to the institution, Mr. Bender manifested evidence

of having consumed alcoholic beverages by having an odor of alcohol on his breath.

14. Upon their return to the institution, all of the appellants were in

an area (Simpson Hall) frequented by inmates.

15. The appellants left TCI at about 3:30 p.m. Mr. Bender was driving

his own car, Mr. Nelson was driving his van, and Mr. Olson had fallen asleep

on a bench/bed in the back of Mr. Nelson's van. The back of the van was subject

to inspection by the gate-keeper as they left the institution.

16. Prior to this incident, Mr. Nelson was in the practice essentially

of keeping track of his own time and frequently did not inform his supervisor

in advance of short periods of anticipated absences from the institution. The

institution approved or condoned these practices.

17. Prior to this incident, in the absence of the superintendent,

Mr. Olson did not feel it was necessary to notify the acting superintendent

in advance of short absences and did not always do so. This practice was

approved or condoned by the institution.

18. Prior to this incident, official institution policy as understood by

the superintendent was that all such absences were to be cleared in advance

with the employe's immediate supervisor, or whoever might be acting as such

in the absence of the immediate supervisor.

19. The superintendent had informed Mr. Olson sometime prior to the

incident of August 19, 1981, that both he and Mr. Bender should not be on

leave concurrently, so as to maximize coverage of the education office.

20. Ms. Switala and the personnel manager, Mr. Regan, conducted

separate investigatory interviews with the appellants on August 26, 1981,

and separate pre-disciplinary interviews with them on August 27th and 28th.

Bender, Olson, & Nelson v. DHSS Case Nos. 81-382-PC, 81-383-PC, & 81-384-PC Page Five

21. At the beginning of each investigatory interview, each appellant

was informed that Ms. Switala and Mr. Regan were investigating the events of

August 19, 1981, and asked each if he had a statement. They then asked

specific questions such as how much each had had to drink, whether the insti-

tution had been notified of his absence, etc.

22. At the pre-disciplinary interviews, the appellants were informed

of the specific work rules each was accused of violating and asked for his

response. Mr. Olson indicated that he had approved Mr. Bender's request to

take leave the morning of August 19, 1981.

23. All of the interviews were conducted with little or no advance

notice, such notice being provided the same day as the interviews.

24. Following the interviews, Ms. Switala and Mr. Regan consulted with

employes involved in personnel and labor relations at the divisional and

departmental level regarding the disposition of these cases. A consensus

was reached and the following suspensions without pay were imposed:

Olson - 5 days Nelson - 3 days Bender - 1 day

One of the factors considered in determining the length of the SuSpenSiOnS

was the number of work rules violated.

25. The amount of discipline imposed was, on the basis of the misconduct

alleged, consistent with departmental disciplinary policy.

26. Prior to the imposition of these disciplinary actions in 1981, the

appellants had no prior records of discipline over their periods of state

service, approximately as follows:

Bender: 7 years Olson: 17 years Nelson: 13 years

Bender, Olson, & Nelson v. DHSS Case Nos. 81-382-PC, 81-383-PC, & 81-384-PC Page six

27. With respect to the allegations against Mr. Olson as set forth in

the letter providing notice of discipline, Respondent's Exhibit 2, the

Commission makes the following findings:

A. He violated Work Rule 14 (failure to give proper notice of absence)

by failing to give proper notice of his absence the afternoon of August 19, 1981.

Although he was not on notice that institutional policy as perceived by the

superintendent required notice to the acting superintendent, he failed to

provide any sort of notice, and knew or should have known that such omission

would have a tendency to create difficulties for other employes who might

be looking for him.

B. He violated Work Rule 12 (manifesting evidence of having consumed

alcohol beverages) by returning to work while manifesting evidence of having

consumed alcoholic beverages.

C. He violated Work Rule 1 (disobedience, etc.) by disobeying the super-

intendent's verbal instructions to avoid scheduling Mr. Bender's time off

with his own time off, by approving Mr. Bender's time off on the same afternoon

(August 19, 1981) that he was absent.

D. He did not violate Work Rule 7 (failure to provide accurate and complete

information) by his statement that he gave prior approval in the morning of

August 19, 1981, to Mr. Bender's absence. Given the ambiguous nature of

certain exchanges between Mr. Olson and Mr. Bender on this subject, Mr. Olson’s

statement to management cannot be characterized as improper.

E. He violated Work Rule 5 (disorderly or illegal conduct or behavior

unbecoming a state employe) by failing to exert a more positive influence on

Mr. Bender and Mr. Nelson on August 19, 1981, as the most senior employe, and

by returning to work while under the influence of alcohol, He can not be said,

Bender, Olson, & Nelson v. DHSS Case Nos. &Xl-382-PC, 81-383-PC, & 81-384-PC Page seven

however, to have taken an excessive lunch break or to have been improperly

"absent" from work, since the time in question was covered by approved leave.

28. The aforesaid work rule violations committed by Mr. Olson had a

tendency to impair the performance of the duties of his position and the

efficiency of the group with which he works.

29. With respect to the allegations against Mr. Nelson as set forth in

the letter providing notice of discipline, Respondent's Exhibit 3, the

Commission makes the following findings:

A. He violated Work Rule 14 by failing to give proper notice of his

absence the afternoon of August 19, 1981. Although he was not on notice that

he was required specifically to notify his superviosr of his whereabouts, he

failed to provide any sort of notice, and knew or should have known that such

omission would have a tendency to create difficulties for other employes who

might be looking for him.

B. He violated Work Rule 12 by returning to work while manifesting

evidence of having consumed alcoholic beverages.

C. He violated Work Rule 5 by his unacceptable behavior. However, the

conduct involved in this violation is the same as in the preceding two work

rule violations.

30. The aforesaid work rule violations committed by Mr. Nelson had a

tendency to impair the performance of the duties of his position and the

efficiency of the group with which he works.

31. With respect to the allegations against Mr. Bender as set forth in

the letter providing notice of discipline, Respondent's Exhibit 4, the CommiSSiOn

makes the following findings:

A. He violated Work Rule 12 by returning to work while manifesting

Bender, Olson, & Nelson v. DHSS Case Nos. Sl-382-PC, Sl-383-PC, & Sl-384-PC Page Eight

evidence of having consumed alcoholic beverages.

B. He violated Work Rule 5 by unacceptable judgment which resulted in

behavior unbecoming a state employe. However, the conduct involved in this

violation is the same as in the preceding work rule violation.

32. The aforesaid work rule violations committed by Mr. Bender were

approved and condoned by his immediate supervisor.

33. The aforesaid work rule violations committed by Mr. Bender had a

tendency to impair the performance of the duties of his position and the

efficiency of the group with which he works.

CONCLUSIONS OF LAW

1. These cases are properly before the Commission pursuant to

s.230.44(l)(a), stats.

2. The respondent has the burden of proof.

3. There was just cause for the imposition of discipline.

4. Based on the facts that were proven, the discipline imposed was not

excessive as to Mr. Nelson and Mr. Olson, but was excessive as to Mr. Bender

and should be modified to a written reprimand.

5. With respect to the process and procedures followed, the appellants

were afforded due process.

OPINION

The framework for the decision of disciplinary appeals is as set forth

in Safransky v. Personnel Board, 62 Wis. 2d 464, 474, 215 N.W. 2d 379 (1974),

which reiterated the definition of the test for determining whether "just

cause" exists for discharge as follows:

II 1 . ..one appropriate question is whether some deficiency has been demonstrated which can reasonably said to have a tendency to impair his

Bender, Olson, & Nelson ". DHSS case Nos. 81-382-PC, 81-383-PC, & 81-384-PC Page Nine

performance of the duties of his position or the efficiency of the group with which he works."

All three of the appellants returned to TCI while exhibiting, to

varying degrees, evidence of having consumed alcoholic beverages. The way

Work Rule 12 is worded, it is a violation for an employe even to have alcohol

on his or her breath. Whatever argument could or could not reasonably be made

about whether alcohol on an employe's breath meets the Safransky standard

outside the correctional setting, it seems clear that in a correctional

institution the employer can forbid all evidence of alcohol consumption -

consistent with Safransky.

The appellants argue that because they used leave time on the afternoon

of August 19th, they ware not subject to Work Rule 12. However, each had

at least one specific duty to perform at the institution. In that respect

they were "at work" even if they chose to take leave time that afternoon.

Neither Mr. Nelson nor Mr. Olson provided notice of his intention not

to return to work the afternoon in question. Regardless of whether there

was a disseminated institutional policy requiring notice to the immediate

supervisor, or, in the case of Mr. Olson, the acting superintendent, they

knew or should have known that failure to provide any notice of their absence

might well create problems at the institution.

With respect to the allegation as to Mr. Olson of a violation of Work

Rule 7, it was not shown that Mr. Olson's version of when he approved

Mr. Bender's leave was inaccurate, even though in Mr. Bender's mind ha did

not have such permission until after lunch.

In disciplinary appeals of this nature, in addition to determining whether

there is just cause for the imposition of some discipline, the Commission also

Bender, Olson & Nelson v. DHSS Case Nos. 81-382-PC, 81-383-PC, & 81-384-PC Page Ten

must determine whether the amount of discipline imposed is excessive and must

be modified pursuant to s.230.44(4)(~), stats. The term "excessive" means

11 'Tending to or marked by excess , which is the quality or state of exceeding

the proper or reasonable limit of measure.' " See Alff v. DOR, 78-227,243-PC

(10/l/81). This process does not involve the substitution of the Commission's

judgment for that of the appointing authority - the discipline is not to be

modified merely because the Commission feels that another approach would be

more appropriate, but only if it is determined actually to be excessive. Such

a standard leaves the appointing authority with a wide range of discretion.

Utilizing this test, the suspensions of Mr. Olson and Mr. Nelson cannot be

said to be excessive. Although one charge against Mr. Olson was not established,

this was probably the least significant of the charges. Similarly,' althotigh the

third charge against Mr. Nelson was essentially duplicitous, the remaining

misconduct constitutes the central aspect of the charges against him. Both

appellants have long prior records without discipline. However, this must be

balanced against the nature of their activities and the correctional setting

in which it occurred. Several employes testified independently that they not

only had alcohol on their breaths, but also they were behaving in what amounts

to a drunken manner. They were away from the institution for several hours

without providing any notice of their absence.

With respect to Mr. Bender, the Commission is struck by the fact

that throughout this episode he was in the company of his imediate supervisor,

who approved and condoned his leave, the afternoon's drinking, and the return

to the institution. Furthermore, although Mr. Bender had alcohol on his breath,

the witnesses who observed him the afternoon in question all testified that he

was not behaving unusually. While it might not be excessive in most cases to

Bender, Olson & Nelson v. DHSS Case Nos. 81-38%PC, 81-383-PC, & 81-384-PC Page Eleven

suspend an employe simply for coming back to the institution from lunch with

alcohol on his or her breath, the mitigation provided in this case by the

supervisor's role is sufficiently compelling as to lead to the conclusion

that the suspension was excessive. However, since Mr. Bender technically

was in violation of Rule 12, some discipline is appropriate and the suspension

should be modified to a written reprimand.

Finally, there was considerable discussion and testimony about the

procedures that were followed by the superintendent in investigating this

matter prior to the imposition of the suspensions. The appellants questioned

whether the agency complied with what they perceived as the agency's disciplinary

policy and procedures to which they had been exposed as members of management.

However, the only issue before the Commission is whether appellants were

afforded due process - i.e., under the federal constitution.

In Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L.3d 2d 15 (1974),

the Supreme Court declined to conclude that the federal statutory scheme under

which an employe could be discharged with a right to a post-discharge, but

not a pre-discharge, hearing violated the right to due process of law. Subse-

quently, the United States Court of Claims in Giles v. U.S., 553 F. 2d 647, 649

(1977), specifically held that due process did not require a pretermination

hearing under the Arnett decision. In Skelly v. State Personnel Board, 539 P. 2d

774, 788-789 (Cal. Supreme Court (en bane), 1975), the court interpreted Arnett

as follows:

"It is clear that due process does not require the state to provide the employe with a full trial-type evidentiary hearing prior to the initial taking of punitive action. However, at least six justices on the high court agree that due process does mandate that the employe be accorded certain procedural rights before the discipline becomes effective. At a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefore, a copy of the charges and materials upon

Bender, Olson & Nelson v. DHSS Case Nos. 81-382-PC, 81-383-PC, & 81-384-PC Page Twelve

the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline."

Based on this record, including the facts that the appellants were suspended

without pay for relatively short periods rather than dischar&ed, that they were

afforded at least a limited opportunity to respond to the charges before the

suspension, and that they were afforded a de nova trial type hearing following --

their appeal, the Commission concludes that they were afforded as much procedural

protection as might be required under an expansive reading of Arnett V. Kennedy,

and that their due process rights were not violated.

ORDER

The actions of the respondent are affirmed as to Mr. Olson (81-383-PC)

and Mr. Nelson (81-384-PC) and those appeals are dismissed. The action of

the respondent as to Mr. Bender is modified and this mattes is remanded for

action in accordance with this decision.

Dated: STATE PERSONNEL COMMISSION

AJT: ers

Parties

James A. Bender Thomas D. Olson Taycheedah Correctional Institution Taycheedah Correctional Institution P.O. Box 33 P.O. Box 33 Taycheedah, WI 53090 Taycheedah, WI 53090

Frank E. Nelson Donald R. Percy Taycheedah Correctional Institution Secretary, DHSS P.O. Box 33 663, 1 W. Wilson St. Taycheedah, WI 53090 Madison, WI 53702